Terrorism, Counterterrorism and International Law

Article excerpt

INTRODUCTION

WHAT DO NELSON MANDELA, Menachem Begin, Gerry Adams and Yasser Arafat have in common? They all made the transition from being regarded as terrorists to being recognized as statesmen and peacemakers. In fact, three of them, Mandela, Begin and Arafat, have been awarded the Nobel Peace Prize and Mandela is viewed today by many as the leading moral authority of his time in the world.

What does this tell us about terrorism? If nothing else, that terrorism, the word on everyone's lips, is easier to talk about than to define. As one commentator, Nissan Horowitz, put it in the mainstream Israeli newspaper Ha 'aretz, "Terrorism -- it's all in the eyes of the beholder. Why is the attack on the Twin Towers called terrorism, while the bombing of a hospital in Kabul is not?" (1) Indeed, international lawyers have struggled to define terrorism for nearly a century, largely without success. In the words of the hoary cliche, "One man's terrorist is another man's freedom fighter." Or, in the context of Israel/Palestine, whom the Israelis call a terrorist the Palestinians call a martyr.

The reasons for this paradox are not mysterious. The terrorist acts out of a sense of injustice perceived by the group to which he belongs, hence he is a hero to the entire group, which may be as small as an anarchist cell or as large as an entire tribe, nation, religion, class or other societal grouping. In the period following the end of World War II, the anti-colonial struggle in Africa and Asia and later the anti-oligarchic struggle in Latin America often relied on tactics condemned as terrorist by those unsympathetic to the aims of the struggle and applauded by those in solidarity with the struggle, whether directly engaged in it or cheering it on from the sidelines. The controversy raging around the film The Battle of Algiers, with its scenes of bombs exploding in crowded cafes, is emblematic of that era.

With the end of colonialism -- albeit not neocolonialism -- and of "wars of liberation" -- albeit without bringing a full measure of freedom to those who waged them -- terrorism has lost much of its luster and now elicits virtually universal condemnation, at least in legal terms. And yet, a comprehensive definition still eludes the world community.

THE SEARCH FOR DEFINITIONS

In his post-September 11 speech to the General Assembly, Sir Jeremy Greenstock, the British Ambassador to the United Nations, said "What looks, smells and kills like terrorism is terrorism." As this is not exactly a legally serviceable definition, diplomats and international lawyers have until recently solved the definitional problem by writing conventions outlawing terrorist acts without ever mentioning the word "terrorism." The official website entitled "UN Conventions on Terrorism" (2) lists eight United Nations conventions and two protocols enacted between 1963 and 1991, dealing with such diverse offences as hijacking, attacks on diplomatic agents and other internationally protected persons, hostage taking, theft of nuclear material and unlawful acts against maritime navigation and fixed platforms located on the continental shelf. It requires no complex process of reasoning to realize that any of these prohibited acts can occur within or without the, context of terrorism. The taking of a hostage for the p urpose of obtaining the liberation of a political prisoner fits the definition of a terrorist act. The same crime committed solely for the payment of ransom does not. The hijacking of the four planes on September 11 was a megaterrorist act. It is questionable, however, whether the hijacking of a plane bound for Florida to enable the hijacker to land in Cuba fits the general view of terrorism.

The last two conventions mentioned on the UN website finally do use the buzzword "terrorism," reflecting the progression from the crime without a name to the crime everyone fears. …